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found that Defendant’s pretrial contacts with Dr. Pinckert, the treating physician, were in violation of HIPAA. Judge Day specifically held: “wise counsel must now treat medical witnesses similar to the high ranking corporate employee of an adverse party.” Id. at 711.

Ex parte Communications with Former Employees

Te Maryland Lawyer’s Rules of Professional Conduct explicitly impose a duty on attorneys

to avoid learning

confidential information from former employees of an opposing party. Rule 4.4(b) added to the Rules in 20022

addresses ex

parte communications between counsel and former employees. It states:

In communicating with third persons, a lawyer representing a client in a matter shall not seek information relating to the matter that the lawyer knows or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege, unless the protection has been waived. Te lawyer who receives information that is protected from disclosure shall (1) terminate the communication immediately and (2) give notice of the disclosure to any tribunal in which the matter is pending and to the person entitled to enforce the protection against disclosure.

physician in regards to a patient’s health. Rather, there are three situations in which HIPAA allows for the release of a patient’s medical records. First, a patient’s health information may be disclosed pursuant to 45 C.F.R.§ 164.512(e)(1)(i) in response to a court order so long as the covered entity discloses only the information expressly authorized by the order. Second and third, medical information “is to be released” in response to a subpoena or discovery request but the health care provider must receive satisfactory assurances that: (1) there have been good faith attempts to notify the subject of the protected health information in writing of the request and that subject has been given the opportunity to object; or (2) reasonable efforts have been made by the requesting party to obtain a qualified protective order. 45 C.F.R.§ 164.512(e)(1)(ii)(A) and (B). In Zuckerman, defense counsel met with Dr. Pinckert, the

Plaintiff ’s treating physician who was listed as a fact witness, after Plaintiff provided her medical records to the Defendant as part of discovery. Plaintiff was not notified in advance that Defendant’s counsel would pursue ex parte communications with her treating physicians. It is unclear what exactly was discussed by defense counsel and Dr. Pinckert though the court’s decision suggests that it was more than “mere contact”. Since the court had determined that HIPAA and not the MCMRA was the controlling law on the issue, the court

42 Trial Reporter / Winter 2012 Te comment to rule 4.4(b) provides:

Tird persons may possess information that is confidential to another person under an evidentiary privilege or under a law providing specific confidentiality protection, such as trademark, copyright, or patent law. For example, present or former organizational employees or agents may have information that is protected as a privileged attorney- client communication or as work product. A lawyer may not knowingly seek to obtain confidential information from a person who has no authority to waive the privilege [emphasis added].

Te rule does not entirely eliminate the ability to confer

with former employees of an opposing party; however, it does preclude such contact where confidential information is sought by an attorney. In addition, the comment to 4.4(b) resolves the question grappled with by Maryland courts as to whether or not the rules applied to former as well as current employees where an organization is a party. Tus, attorneys should proceed with caution when seeking information from former employees of an opposing party to avoid violating the Maryland Lawyer’s Rules of Professional Conduct.

2 Larry R. Seegull and Jill S. Distler, Ex Parte Communications with Former Employees under the Maryland Rules of Professional Conduct,Te Defense Line (Spring 2003).

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